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Findings and recommendations on merit review 040/18

Findings on review

The following are the finding of the State Insurance Regulatory Authority (the Authority) on review and is to be the basis of a review decision by the Insurer.

The Worker has no current work capacity and is likely to continue indefinitely to have no current work capacity.

The Worker is entitled to weekly payments of compensation in accordance with section 38(2) of the Workers Compensation Act 1987 (the 1987 Act)

Recommendation based on findings

The Insurer is to calculate the Worker's entitlement to weekly payments based on the finding above. The effective date of this recommendation is August 2017.

The above recommendation is binding on the Insurer in accordance with section 44BB(3)(g) of the 1987 Act.

Background

The Worker was at their job with the pre-injury employer when they were injured.

The accident caused the death of a person and injured others including the Worker.

The Worker was taken to hospital with multiple injuries including surgery to their left knee. The Worker has also developed psychological conditions as the result of the accident.

The Insurer made a series of work capacity decisions in relation to the Worker in August 2017. The Insurer ultimately determined that the Worker had no entitlement to weekly payments of compensation. The Insurer wrote to the Worker in a letter dated that day to inform them of the outcome of its decision.

The Insurer conducted an internal review of the work capacity decisions and made the same determinations as the initial decision maker. The date of the internal review decisions was October 2017 and the Worker has confirmed that they received the review document on xx October 2017.

The Authority received the application for merit review in November 2017. The application has been accepted.

Legislation

The legislative framework governing work capacity decisions and reviews is contained in the:

Section 44BB of the 1987 Act provides for merit review of a work capacity decision of the Insurer, by the Authority.

Information considered

I have considered all of the information that was provided by the parties in relation to the Worker's application for merit review. I have only referred to the information that is most relevant to my findings, in my reasons that are set out below.

I have also considered the additional information that has been submitted by the Worker and the Insurer subsequent to the initial application and reply. I am satisfied that these documents have been exchanged between the parties.

Submissions

In the application for merit review, the Worker has requested a review of the following work capacity decisions of the Insurer:

Current work capacity

Suitable employment

Risk of further injury as a result of engaging in employment of a particular kind

The Worker's submissions in support of their application for merit review are summarised as follows:

Their treating doctor was coerced into certifying them fit for some duties which they have subsequently revoked.

They have only ever worked in the pre-injury role and are not qualified for other forms of work.

The Insurer has acted on parts of reports that it considers more favourable to its position and has not provided a reason for disregarding the opinions of other practitioners as well as that of the treating psychologist.

The work capacity decision quotes consultant psychiatrist as saying that they may be able to engage in alternative duties of a menial kind but does not mention that they noted that from a psychological perspective the Worker cannot return to work in their pre-injury profession. If they are not fit to work in a pharmacy which is the only work that they have ever done, how could they be said to be fit for duties as a receptionist let alone that of an employment consultant.

While psychiatrist and pain management consultant says that they have the psychiatric capacity to undertake carer duties, it is doubtful that they would have the physical capacity to do so.

Acceptance of orthopaedic surgeon’s opinion flies in the face of the fact that they are still having significant problems with their knees in particular. Their opinion is also based solely on their physical condition and does not take their psychological condition into account.

Injury management consultant (2) suggests a fitness of 4 hours per day, 3 days per week to start with. The occupational physician saw them in May 2017 which was 14 months after them. They have commented on their physical disabilities such as using a walking stick and a walking frame from time to time. Only found 7% WPI and the occupational physician assessed WPI at 20%.

The vocational report does not take their psychological injuries into account.

Treating psychologist considers that their capacity for work is poor and details their current physical and mental problems in the report dated March 2017.

Injury management consultant’s opinion is solely based on their physical condition and does not take their mental state into account. When this is taken into account, they are not fit for work.

In reply, the Insurer's submissions may be summarised as follows:

It maintains the original work capacity decisions and internal review.

Reasons

Nature of merit review

A merit review is a review of the work capacity decision of the Insurer. It involves considering all of the information that has been provided to me.

I will then make findings and may make recommendations about the work capacity decisions that have been referred for review.

The review is not a review of the Insurer's procedures in making the work capacity decision and/or internal review decision.

I am required to consider all of the information that has been provided and make findings and recommendations that are most correct and preferable.

Current work capacity

The Worker has requested a review of the Insurer's decision as to their current work capacity. In conducting the review, I am required to refer to the definition under the 1987 Act.

"Current work capacity" and "no current work capacity" are defined in section 32A of the 1987 Act as:

current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment

no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment

I have set out the information that has been influential in making my findings below, by medical practitioner and injury type, being physical and psychological.

Certificates of capacity and NTD correspondence

Registrar on behalf of the nominated treating doctor (NTD). The registrar issued a certificate of capacity in November 2017 for the period from November 2017 to December 2017. The registrar indicated that the Worker had no current capacity for any type of employment for that period.

According to the certificates of capacity that are available to me, certificates of capacity have indicated that the Worker has no current work capacity since at least June 2017.

The registrar has also provided a letter also dated November 2017, in which they indicate that they consider that the Worker has no current work capacity as a result of their ongoing health issues arising from their workplace accident.

Physical capacity

Occupational physician. They examined the Worker in May 2017. They were assessing the Worker for the purpose of determining whether certain aids were necessary for them. Their observations also relate to the Worker’s physical capacity. They noted that there was accelerated degeneration of the Worker's right knee. This was attributed to their altered gait as the result of their workplace injuries. They observed that when the Worker’s injuries were aggravated, it would be difficult for the Worker to walk distances of more than 100 to 200 metres.

They considered that the use of a mobility scooter was reasonable for the Worker for their level of incapacity.

Injurymanagement consultant(1). They conducted an injury management consultation with the Worker. The date of the consultation is not clear. However the resulting report is dated March 2017.

Following the examination of the Worker, they were of the opinion that the Worker could return to some form of employment for at least 4 hours per day, 5 days per week. They found that the Worker should:

Lift no more than 5kg close to their trunk.

Avoid duties that require the use of stairs or squatting.

Avoid walking on uneven ground.

Work at waist height to remove their need to access lower levels.

Periods of standing should be limited to 10 minutes per hour.

They note that the Worker should be capable of undertaking duties that are considered sedentary. They did not comment on the Worker's psychological capacity for employment.

The orthopaedic surgeon examined the Worker in June 2016 and prepared a report of their findings dated the same day.

They were of the opinion that the Worker was largely unfit to work based on problems getting to and from work. They also noted that the Worker had trouble with sitting and standing for long periods.

They made the following observations about the Worker's capacity for employment:

Unable to stand for more than 10-20 minutes at the most.

They complain of pain when sitting for long periods.

Could lift up to 10kg.

Not able to walk any distance without their walking stick.

They feel they are unable to drive, and until their psychological barrier is overcome this would remain an inhibiting factor.

In a supplementary report, dated August 2016, the orthopaedic surgeon noted:

"There was little physically I could find to prevent the worker returning to work. They should be able to manage a situation where they could sit or stand at will, in view of their lower limb symptoms."

Injury management consultant (2). They examined the Worker in March 2016. They found that the Worker would be fit to undertake work in a field of employment other than their pre-injury employment in which the Worker could undertake sitting down clerical duties and that could commence these duties at 4 hours per day, 3 days per week.

They indicated that the Worker should avoid lifting, pushing or pulling weights of greater than 3-4kg and avoid prolonged walking or standing. There should be no kneeling or squatting.

Psychological capacity

Treating psychologist. They wrote a report at the request of the Insurer dated March 2017. They did not offer a direct opinion as to the Worker's capacity for employment, however, offered a number of clinical opinions that have been of assistance to me.

They noted that the Worker's PTSD symptoms had reduced somewhat but had become chronic. They also noted that the Worker had impaired cognitive function and that their mood and ability to control their emotions had deteriorated due to increasing feelings of loss of control of their life.

Clinical psychologist. They conducted an interview first with the Worker and then with their sister. The interviews spanned a period of approximately 7.5 hours. The report prepared by the clinical psychologist is extensive.

Following the assessment, they reported that the Worker had ongoing significant problems that would require extensive treatment to overcome. They noted that their current emotional problems were likely to interfere with their ability to adapt to work other than the pre-injury work, this being the only type of employment that they had ever done.

Psychiatrist & pain management consultant. They conducted a clinical examination with the Worker in June 2016 and reported their findings in a document of the same date.

They concluded that the Worker was the primary carer for their mother and that they had the psychological capacity to engage in that type of employment for up to 20 hours per week.

Consultant psychiatrist. They examined the Worker in March 2016. They found that the Worker may be able to engage in alternative duties of a menial kind provided that they were sedentary for the purpose of employment.

Findings

Physical capacity. The Worker's situation is complicated. They have suffered injuries that are both physical and psychological as the result of a very serious incident that happened in their workplace four years ago.

The Worker's NTD does not think that they have capacity for any type of employment. The reasons stated are that the Worker has a chronic pain syndrome, suffers from PTSD and that they have stress fractures in their right leg as the result of compensating for disability in their right leg.

The occupational physician examined the Worker in May 2017. There’s is the most recent opinion as to the Worker's physical state that is available to me outside that of their NTD. They indicated that on some days the Worker has capacity to walk a maximum of 100 to 200 metres.

I acknowledge that the other medical information before me indicates that the Worker does have capacity for some type of employment. Those opinions are between 9 and 18 months old. The occupational physician has observed that the Worker's right knee degeneration had accelerated and this had led to their finding that the Worker should reasonably have access to a mobility scooter.

In light of this development, the older medical opinions are not likely to accurately reflect the Worker's current capacity for employment.

As the opinion of the registrar who was acting in the place of the NTD is the most recent opinion as to the Worker's capacity for employment that is available to me (with the next most recent being six months older), and in light of the fact that there is evidence that the Worker's physical capacity has been degenerating, I am satisfied that the opinion of the registrar is the most accurate reflection of the Worker's physical state.

Psychological capacity. The clinical psychologist has indicated that the Worker's emotional problems are likely to interfere with their ability to undertake any work other than that of the pre-injury work. I note that there is no dispute that the Worker is not able to return to that type of employment.

Treating psychologist has also noted that the Worker's emotional control and mood has deteriorated since 2016.

The registrar has also indicated that the Worker has no work capacity, in part, as a result of their PTSD.

While there are older psychological reports before me, treating psychologist’s report indicates that the Worker's condition has deteriorated over the past 12 months in relation to their ability to cope emotionally. Further, while it has stabilised, the Worker's PTSD has not resolved and has become chronic. On balance I consider that the information before me indicates that the Worker does not have the psychological capacity for employment of any kind at this time.

The information before me indicates that the Worker's current psychological state is such that they are not able to return to work.

For the reasons outlined above, I find that the Worker has a present inability arising from an injury such that they are not able to return to work, in either their pre-injury employment or in suitable employment.

I therefore find that the Worker has no current work capacity in accordance with the definition under section 32A of the 1987 Act.

Entitlement period

There is no dispute that the Worker's entitlement to weekly payments of compensation falls in the period after the second entitlement period and that their entitlement to weekly payments of compensation is to be determined in accordance with section 38 of the 1987 Act.

Determination of entitlement to weekly payments

Section 38 of the 1987 Act states that a Worker's entitlement to weekly payments of compensation ceases after the second entitlement period, unless they come under an exception.

Section 38(2) of the 1987 Act states:

A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.

I have found that the Worker has no current work capacity and I am satisfied that they are likely to continue indefinitely to have no current work capacity as there is no information to indicate that their condition is likely to improve within a defined period.

I therefore find that the Worker has an entitlement to weekly payments of compensation in accordance with section 38(2) of the 1987 Act.

The Insurer is therefore to calculate the Worker's entitlement to weekly payments of compensation on the basis that they have no current work capacity.

Merit ReviewerMerit Review ServiceDelegate of the State Insurance Regulatory Authority